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It shall be lawful for no one to decide causes unless authorized
either by the mandate of the prince, or by the consent of the parties
evidenced by an agreement made in the presence of three
witnesses, and attested by their seals or signatures. If those,
however, who have received from the king authority to preside in
court, or those who exercise judicial functions either through the
appointment of magistrates or judges, should delegate their powers
in writing to others who are properly qualified, the latter shall have
the same power in determining or settling affairs pertaining to their
offices, as the judges themselves, or the other officials from whom
they received their commissions.
THE GLORIOUS FLAVIUS RECESVINTUS, KING.
XIV. What Causes shall be Heard, and to what Persons
Causes shall be Assigned for a Decision.
While deputies are permitted to render judgment in certain
criminal and civil cases, they must not presume to release criminals
under the sentence of the law, but shall see that said sentence is
duly executed; and those who choose such deputies, should
solemnly impress upon them that, during their absence, they should
act with moderation and decide with justice.
THE GLORIOUS FLAVIUS RECESVINTUS, KING.
XV. Judges Shall Decide Criminal as well as Civil Causes.
The judges shall have all of the business of the court under their
control, as they have full authority to dispose of all criminal and civil
business. But Defenders of the Peace cannot dispose of other
causes than those which the royal power has permitted them to
determine. The Defender of the Peace is he who has been
appointed by the royal authority for the sole purpose of settling legal
disputes between the parties.
FLAVIUS CHINTASVINTUS, KING.
XVI. Concerning the Punishment of Those who Presume to
Act as Judges, who have not been Invested with Judicial Power.
No one shall presume, either by decree, or by means of a bailiff,
to either imprison or oppress any person, in any way, in a district
over which he has not been appointed, or where he has no judicial
authority, unless by the order of the king, or by agreement of the
parties, or under instructions of a governor or a judge, in accordance
with what has been stated in a former law relating to the appointment
of judges. And, where a non-appointed judge, as aforesaid, is guilty
of usurpation, and unlawfully presumes to do things that are
prohibited; as soon as this fact shall come to the knowledge of the
governor of the province, whether he is acting in his own proper
person, or by a deputy, he shall cause the illegal act to be punished;
and the magistrate who has thus exceeded his authority shall pay a
pound of gold to him whose rights have been affected, if insult or
injury have alone been committed. But if said person who has
illegally assumed judicial functions, shall boldly deprive anyone of
any property, or order it to be done, he shall not only make
restitution, but shall be compelled to surrender an equal amount of
his own property to the party injured. And if any judge shall appoint
his own slave, or the slave of another, to transact any legal business,
the judge who appointed him shall render full satisfaction to the law
for whatever injustice said slave shall commit. Any bailiff who, acting
under the orders of such an usurper of judicial authority, shall arrest
or imprison any one, or remove any of his property, shall be
scourged with a hundred lashes, and, in this way, shall pay the
penalty of his insolence.
FLAVIUS CHINTASVINTUS, KING.
XVII. Concerning Those who Ignore the Letters of the Judge,
or His Seal, Calling Them to Court.
When application has been made to the judge by a plaintiff, he
may compel the other party to come into court, either by means of a
letter or by his seal, in this manner, to wit: that the messenger of the
judge shall offer the letter or seal to him who has been summoned,
in the presence of respectable witnesses. And if after having
received said summons, he should either delay, or refuse to appear,
he shall forfeit five golden solidi to the plaintiff, on account of his
delay or refusal, and five more to the judge on account of contempt.
But if he should not have the means to pay this fine, he shall, for
each offence, receive fifty lashes in the presence of the judge, but
they must be so inflicted as to place upon him no permanent mark of
infamy. But if he should only be guilty of contempt, and should not
have the means wherewith to render satisfaction, he shall receive
thirty lashes, without further penalty. And if he who has been sued
shall declare, before he receives punishment from the judge, that he
has, in no way, been guilty of delay or contempt, and shall be unable
to prove this fact by witnesses, and shall make oath that, at no time,
has he been guilty of contempt as aforesaid, he shall be exempt
from the condemnation and punishment hereinbefore mentioned. But
if any bishop, relying upon the privileges of the sacerdotal order,
shall ignore the summons of the judge, and neglect to give security
for his appearance, he shall, without delay, be compelled, either by
the presiding judge, or by the governor or lord of the province, to pay
a fine of fifty solidi: of which sum the judge shall receive twenty
solidi, on account of contempt, and the plaintiff the remaining thirty.
But if any priest, deacon, clerk, or monk, after receiving the letter or
seal of the judge, should delay to answer either in his own person or
by a representative, or should continue obstinately in contempt, he
shall undergo the punishment hereinbefore mentioned, according to
the provisions of the law relating to the laity; and if he should not
have the means to pay his fine, the bishop may be notified, that he
may have the privilege of paying the same for him, if he so desires.
But if he should be unwilling to do so, the bishop must bind himself
by oath, in the presence of the judge, that he will place the above-
named person under such restraint that he shall be compelled to fast
continuously for the space of thirty days, and shall only receive each
day at sunset, a little bread and water; that, by this means, his
contumacy may be punished in a proper manner. It shall always be
in the discretion of the judge, that if it should be evident that, either
through age or sickness, a severe sentence could not be endured;
the judge shall not inflict the extreme penalty upon any one
belonging to any rank of the clergy, or upon a layman; but the illness
or age of the offender being taken into consideration, he may impose
such a penalty that the person in contempt may not thereby undergo
either great weakness or exhaustion, or death. Any one who refuses
to obey the mandate of the judge, and conceals himself, so that the
judge cannot easily find him, and does not present himself in court
within four days after the appointed time, but presents himself upon
the fifth day, shall not be subject to the sentence of this law. In like
manner, if any one who, at the time, is distant more than a hundred
miles, should appear upon the eleventh day after the appointed time,
he shall not undergo the penalty of this law. And also, if he who is
distant two hundred miles, should present himself in court on the
twenty-first day after he has been summoned; he shall be free from
punishment under this law. And a similar regulation shall prevail
where the length of the journey is still longer. And, finally, if he to
whom reasonable time has been given, should purposely delay, and
does not appear, upon the last day prescribed by law, the judge shall
at once grant the prayer of the plaintiff; and if, subsequently, the
other party should appear in court, and the twenty-first day shall
have passed, he shall be fined twenty solidi of gold. And if he that is
distant more than a hundred miles, should exceed the term of eleven
days, he shall be liable to a fine of ten solidi: of which the judge shall
reserve for himself half, and the other half shall be given to the
plaintiff. But if sickness should prevent one who is summoned from
appearing; or if he should be hindered by an inundation; or his paths
across the mountains should be obstructed by snows; this must
plainly appear; and the truth must be established either by credible
witnesses, or by the oath of the party himself.
FLAVIUS CHINTASVINTUS, KING.
XVIII. Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently, or Ignorantly.
If any one should file a complaint against another before a judge,
and the latter should refuse to hear him, or deny him the use of his
seal, or, under different pretexts, should delay the trial of his cause,
not permitting it to be heard, through favor to a client or a friend, and
the plaintiff can prove this by witnesses, the judge shall give to him
to whom he has refused a hearing, as compensation for his trouble,
a sum equal to that which the plaintiff would have received from his
adversary by due course of law; and he who brought the suit may
have it continued until the time appointed by law; and, when it comes
before the court for trial, he shall receive the judgment to which he is
entitled. But if the plaintiff should be unable to prove either the fraud
or undue procrastination of the judge, the latter shall make oath that
he, through no malice, nor through favor or friendship, has delayed
the hearing, and, by reason of this oath, the judge shall in no manner
be deemed guilty.
The judge shall be permitted, for two days in every week, or
every day during the noon hour, to desist from holding court, and to
repose in quiet at home. But, for the remaining time, he shall attend
to the business of his office, and, without any unnecessary delay,
determine such matters as may be brought before him.
I. No One can Refuse to Answer because the Plaintiff has Never Presented
his Claim to Him.
II. The Court must be Disturbed by no Clamor or Tumult.
III. Where there are Many Litigants, Two may be Chosen who shall have
Power to carry on the Suit.
IV. Both Parties may be Compelled by the Judge, or the Bailiff, to be Present
in Court on the Day when the Case is to be Heard.
V. Those whose Affairs have been brought before a Tribunal for a Decision,
shall, under no Circumstances, enter into a Compromise before the
Case has been Decided.
VI. Both Parties shall be Required to Furnish Testimony.
VII. Concerning the Journey which any one Compels an Innocent Person to
Make.
VIII. Where any one Residing in the District of one Judge has a Cause of
Action against a Party Living in the District of another Judge.
IX. Concerning Those who Venture to Defend the Suits of Others.
X. No Freeman shall Refuse to Answer the Slave of another in Court.
III. Where there are Many Litigants, Two may be Chosen who
shall have Power to carry on the Suit.
If the litigants are more numerous on one side than on the other,
both sides, in turn, shall select from their number, parties to carry on
their case. For all ought not to participate in the conduct of the
action, but, as we have said, those chosen by both sides should
alone appear in court, so that all noise and confusion may be
avoided.
FLAVIUS CHINTASVINTUS, KING.
IV. Both Parties may be Compelled by the Judge, or the
Bailiff, to be Present in Court on the Day when the Case is to be
Heard.
Often, through the negligence of the judges or the bailiffs, when
security is not required of the parties, one or the other of them
unnecessarily suffers inconvenience or injury. For when one party is
present in court, and the other is absent, no little expense is often
incurred by the former. Therefore, we decree that all judges, and all
upon whom judicial power has been conferred, whenever the time
arrives in any suit for the giving of security; or when a cause is about
to be heard, or settlement to be made; both parties, that is the
plaintiff as well as the defendant, shall be required to give bond, that,
upon the day appointed for trial, either in person, or by
representatives, they shall be present in court, in order that the case
may be heard, or the claim otherwise disposed of; and if either party
should refuse to come, and absent himself upon the appointed day;
or if sickness, or any accident during his journey, should prevent him
from coming; and he should not communicate the fact to the judge or
his attorney; and should not appear in court within the time
prescribed by law, and the case should be delayed on that account;
he shall pay the amount of the bond to him before whom he entered
into the obligation. And if either the judge or the bailiff should neglect
to exact security from both parties, as aforesaid, and, while
compelling one party to give bond should excuse the other, he shall
pay out of his own property, a sum equal to that for which he wished
to make him liable whom alone he placed under bond. And if, to the
injury of either party, the judge or the bailiff should restore to one the
undertaking which he had exacted from the other, or should destroy
or conceal it, he shall pay him on account of whom the bond was
executed, out of his own property, a penalty equal to that which was
inserted in the bond.
He who brought the suit may then insist that it be carried on
without further delay. The penalty, although declared in the bond to
be payable to the judge or the bailiff, shall not entirely belong to
them; but, after the case has been decided, they shall be entitled to
half of said penalty, and the other half shall be given to the party who
gains the suit.